I get emails by the dozens every month asking me about this. Some Veterans get their decisions back from the BVA directly and the VSOs never even see it. Maybe that’s just as well. If you won anything, they’d be all over you like white on rice for a photo op. Trophy Walls they have. Yessssssssssss. And bars right next to them. So what, exactly, is a judicial referral from your Board of Veterans Appeals Judge. While it sounds vaguely similar to a remand, it’s a far different animal. Personally, I doubt a VSO representative could differentiate between the two terms so I will do so.
Legal definition: The relinquishment of legal authority to decide a claim;
the act of sending an appealed claim back down to the original adjudicator to decide in the first instance;
lacking legal authority to decide the appeal due to an incomplete or legally insufficient adjudication by an inferior court or agency below.
The Pontius Pilate cleansing of the hands ceremony (humourous definition)
Sometimes, and unfortunately/appallingly more so in VA jurisprudence, Veterans find their duly certified appeals to the BVA are deficient. Shocked. I am shocked, I say. A Veterans Law Judge (VLJ) or his/her staff attorneys, when perusing your appeal for legal sufficiency, often find an error of law or a claim bundled up with others which was never adjudicated in its own right. You can hear Gomer Pyle’s ghost saying Surprise! Surprise! Surprise! if you’re my age.
Moody v. Principi teaches us that a claim or claims must be sympathetically developed and any inferred or informal claims arising from it are addressed up or down.
VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
This must be done by the Agency of Original Jurisdiction (AOJ)- i.e. your local Puzzle Palace. In the event this doesn’t occur, and assuming the Veteran files an appeal for the denial of all, or even part of other claims filed at the same time, the VLJ is required to refer it back to the AOJ to be decided first before s/he can finally decide it on appeal.
A classic example. You file for Hepatitis C, Diabetes Mellitus II, and loss of use of the lower extremities. Your Veterans Service Center denies you for all of them. You file your VAF 21-0958 and substantively appeal all three issues. But. You insert something in the NOD you never claimed in your original claim contention list such as flat feet. VA denies anew, issues the SOC but neglects to address your board feet in clear English such that you could understand you’d been denied. You then file a VA 9 and again say “Quo pedes vadis?” VA proceeds to issue the VA 8 while ignoring the foot issue yet again and it eventually arrives at the BVA. An astute law clerk would discern the AOJ had neglected to decide the pes planus claim in the original decision. The VLJ will proceed to rule on any “ripe” appeals but refer the flat footedness back to the AOJ to be developed and decided first.
A BVA referral absolves ownership of the claim by the VLJ. A remand does not. A remand is different inasmuch as the VLJ assumes “ownership” of your appeal and holds onto it like a doggie with a bone. S/he remands it back to the AOJ only to correct a deficiency in their handling of it. Once the AOJ “corrects” the error and grants or redenies it with an SSOC, it is sent back up to the VLJ to be readjudicated. Sometimes, your Fort Fumble folks disremember to issue an amended SOC on a newer claim. The BVA remand merely gives the AOJ an opportunity to fix it by issuing one. Once the AOJ performs the remand request, the VLJ reasserts legal ownership of it onward to its normal conclusion ( grant or denial).
A claim that is inferred, implied or informally presented, vocalized at a hearing and never addressed is fair game for a referral. A VLJ, by law, is not allowed to decide an appeal until it has been decided below. You would be stunned to know how many Veterans get referrals. S/he’s (the VLJ) is smart enough to discern the error. They take great pleasure in telling VAROs how dumb they are. You will see ‘stupid’ rephrased in excruciatingly polite English by the VLJ. I think they teach that in Law School.
I am co-counsel presently on a 1992 remand where a Veteran’s appeal was remanded back to the AOJ for a SOC on his claim for seizures. The Green River Memorial RO here in Seattle treated it as a referral instead of a remand and readjudicated it by simply re-denying it. Granted, they did issue the SOC but nothing else-not even a mailing saying so. About six months later, when the Vet asked what the status was, the VA baldly stated that the statute of limitations had run out 60 days after they issued the SOC on it. Old Orville had missed the boat for a new VA 9. His VSO (Vietnam Veterans of America) apologized and allowed as he’d let it get by him because he didn’t see it as a remand-but rather a referral!. I doubt he could discern the difference legally. Orville gamely pursued it pro se for twenty years but never got any traction on it until he approached me. The proper procedure in this case was to issue the SOC and send it back to the VLJ for an up or down decision on appeal. This they neglected to do… in 1992. Equitable tolling applies.
When the VA fails to return the remanded claim to the BVA, the claim goes into the deep freeze and awaits a readjudication when the error is discovered-if ever. When (and if) it is discovered, the BVA will grant equitable tolling and begin where they left off. How many of you would understand that intricacy of VA law? Few, I suspect. Most would trust our Alma Mater and the Presumption of Regularity (P of R) would apply. The P of R posits that the VA is always knowledgeable and never makes mistakes. What appears regular is regular and the onus of disproving that falls on the accuser (you). So we accused them of schlepping Orville’s remand. The RO denied and it went up to the BVA. It’s due soon for a decision.
A referral, on the other hand, returns your incomplete claim to your Regional Office (AOJ) much like a remand. The similarity ends there. The DRO promptly reviews it and usually issues a denial. They mail you out the Dear John Vet letter and tell you you have the right to file a NOD and the regular process for this contention begins all over at that point.
A referral is only used for an incomplete, unadjudicated claim
A remand is a tool to repair a legally, proceduraly insufficient appeal.
Often, a pro se Vet unfamiliar with the process (or an ignorant VSO) will add contentions into a NOD or VA 9 substantive appeal that were not raised when the claim was filed. Let’s say you’d filed for the DM II as I mentioned above. When the VSO is helping you (and I use that adverb very loosely) file your NOD, you might say “Oh yeah. I forgot. I have tingling and numbness in my hands and feet.” If you file a contention on it in the 958 but you never filed it in the beginning, it’s technically a new claim. Here’s where Moody fits in. VA should know, and they do, that if you have peripheral neuropathy and you’ve already been diagnosed with DM II, odds are the DM II is the culprit. That’s an inferred claim-as would be diabetic neuropathy (going blind). They should , by law, adjudicate this or address/develop it. They rarely do. In the case described above, you’d normally file a VAF 526b and ask for it to be rolled up into the current appeal. The DRO has the authority to do this but they’ll invariably lie and say they can’t. Shoot, folks. They’re lazy. If they decline, I say something like “Shit, Bubba. Don’t you honkys know you have the authority to do this? Look it up in your M 21 comic books” and then cite to the Standard Operating Procedures in the Segmented Lanes Model of Adjudication under M-21-1 1.3a (change date 7/14/2015). Actually, I’ve never called a DRO Bubba yet so I don’t advise that approach. I do guarantee it will roll their socks down, however. You will have their undivided attention in short order. Nobody likes to get called out for lying. That’s what the big dust up was over the Supreme Court nomination the last couple of weeks. The Presumption of Regularity also posits that VA DROs can never lie. I let them off with informing them they might have overlooked the M 21 change because they are waaaaaay behind in updating it. My technique is to remind them how to do their jobs-albeit politely. Giving them the M 21 legal authority has to be done subtly.
If you added these in after the original filing of the latest 526EZ, and the staff lawyer picks up on it on appeal to the Board, they have to refer it back to the AOJ to have it addressed as a properly raised claim that has been ignored or forgotten. Not only do they have to but they will. This is another reason appeals take so long. You’re dealing with professionals for the most part and they generally aren’t sloppy. I’ve jokingly referred to this in my book as the “coat and tie” stage. A VLJ has a Juris doctorate. The staff attorney has a juris doctorate. They know law (sort of). That’s a far sight better than the yayhoos at your local VA who have 200 hours in on M 21-1 instruction and compliance, 150 on Human Resources Management, 100 on memorizing all the acronyms like WARMS, CAPRI, CEST, EP, BIRLS, VACOLS, SOJ, VBMS ad nauseum and 0 hours studying 38 USC, 38 CFR and Black’s Law.
If the local yokels were doing their jobs properly, there would be no need for referrals-or remands for that matter. The words would be superfluous; they wouldn’t be needed in the legal lexicon. Perhaps in a more perfect world but not our nonadversarial, Veteran friendly, paternalistic ex parte system. No sireee, Bob.
The teaching moment here is to make sure you tack on that M 21 ditty to any 526b you file for your clients after the claim is in the chute. Here’s a recent example of a referral from a BVA Judge to adjudicate some other issues like SMC L for Aid and Attendance and SMC R1 which were implicitly denied when the LOU of the lower extremities was denied. I contend they implicitly denied us and never certified it. I did call his DRO and she agreed to pick that up when she writes the decision next Tuesday the 9th. Cool beans.
Today’s lesson has been brought to you by the Letter R.